B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY(FD-10-101-17, HUNTERDON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4805-15T4

B.C.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
May 11, 2017
v.
APPELLATE DIVISION
NEW JERSEY DIVISION OF CHILD
PROTECTION and PERMANENCY,

Defendant-Respondent.

____________________________

Argued telephonically March 17, 2017 —
Decided May 11, 2017

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FD-10-101-17.

Kenneth Rosellini argued the cause for
appellant.

Andrea C. D'Aleo, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
D'Aleo, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.
 B.C. seeks reversal of the Family Part judge's July 1, 2016

order dismissing his complaint for grandparent visitation filed

under the FD, non-dissolution, docket. At oral argument before

us it became apparent that both sides now agree that the FD

complaint should not have been dismissed. Although the parties

have reached agreement on this point, we write this opinion to

suggest the proper procedure for determining what contact B.C.

should have with his grandchildren and to clear up any

misunderstanding in the future regarding treatment of

contemporaneous FN abuse and neglect and FD non-dissolution

visitation complaints.

B.C. and his wife1 have provided a resource home for their

grandchildren during several lengthy placements by the Division

of Child Protection and Permanency (Division). Most recently, the

four children were in B.C.'s custody from January until June 2016,

when the children were removed by the Division because both B.C.

and his wife failed to cooperate with court-ordered psychological

evaluations.

After the removal, B.C., represented by counsel, sought

visitation with his grandchildren by filing an FD complaint and

order to show cause seeking emergent relief. The Division

1 B.C.'s wife, the maternal grandmother, is not a party to this
action.
2 A-4805-15T4
responded to the FD complaint by stating it was invalid because

of an ongoing FN action. The Division suggested a motion to

intervene in the FN matter would be the proper procedure, although

the Division made clear it would oppose such a motion. The judge

hearing the FN complaint denied the emergent FD application and

dismissed the FD complaint, noting the children were subject to

an open FN matter and directing B.C. to "file a motion."

B.C. interpreted this order as requiring him to file a motion

to intervene in the FN action. He appealed, claiming the FD

complaint was the proper means of filing a grandparent visitation

complaint, pursuant to N.J.S.A. 9:2-7.1. The Division responded

that the trial judge appropriately denied B.C.'s request for

emergent relief under the FD docket because the visitation sought

was not emergent in nature. The Division, however, conceded at

oral argument that dismissing the FD complaint was improper.

We conclude that the procedure followed here failed to

acknowledge the grandparents' separate legal rights under the

grandparent visitation statute, N.J.S.A. 9:2-7.1, which they would

ordinarily seek to assert in the FD docket. But, as illustrated

by this case, we also acknowledge that the visitation issue is

relevant to both the FN and FD dockets. We reverse and remand to

allow the judge to consider the visitation request of B.C., either

within the FN docket, or as a companion FD case.

3 A-4805-15T4
 Even if the issue is addressed in the FN docket, however, the

FD docket number should be preserved to allow the grandparents to

file an enforcement motion, if necessary, without involving the

Division after the FN matter is resolved and dismissed. In

general, the FD docket number should be maintained to preserve the

FD plaintiff's right to pursue visitation.

B.C. and his wife are the maternal grandparents of four

children; "Albert," the oldest, was thirteen years old when the

FD complaint was filed.2 The Division has been involved with the

family since 2008 due to concerns about physical abuse, domestic

violence and substance abuse by the birth parents.

The children were initially removed from their parents'

custody in December 2012 and placed in the licensed resource home

of their maternal grandparents. After seven months, the children

were reunified with their mother, K.C., for five months before

being returned to the grandparents for another eight months, after

which they were again reunified with their mother. A month later,

in January 2016, the children were once again removed and placed

with their maternal grandparents. B.C. states that his

grandchildren, particularly Albert, have been in his care so often

2 Initials and pseudonyms have been used to protect the parties'
identity. R. 1:38-3(d)(12).
4 A-4805-15T4
that he has become a psychological parent to them.3 The three

youngest children have been returned to their mother while Albert

is living in an institutional setting.4

On February 22, 2016, the judge entered an FN order directing

B.C. and his wife to "undergo psychological evaluation[s] as

arranged by the Division." An April 2016 letter from a Deputy

Attorney General to B.C.'s counsel stated the Division sought

psychological evaluations because there is a "strong possibility"

that B.C. and his wife's home may be the permanent plan for the

children. The letter also stated that the Court Appointed Special

Advocate5 reported a number of behaviors involving the grandparents

3 See V.C. v. M.J.B., 163 N.J. 200, 223 (citations omitted)
(stating the proof necessary to establish that one is a
psychological parent: "(1) that the biological or adoption parent
consented to, and fostered, the petitioner's formation and
establishment of a parent-like relationship with the child; (2)
that the petitioner and the child lived together in the same
household; (3) that the petitioner assumed obligations of
parenthood by taking significant responsibility for the child's
care, education and development, including contributing to the
child's support, without expectation of financial compensation .
. . ; and (4) that the petitioner has been in a parental role for
a length of time sufficient to have established with the child a
bonded, dependent relationship parental in nature"), cert. denied,
531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

4 For the purposes of this appeal, we allow the expansion of the
record by the Division to include various redacted documents from
the FN matter, although the better practice is to file a motion
to expand the record. R. 2:5-5.

5 In J.B. v. W.B., 215 N.J. 305, 332 n.5 (2013), the Court stated:

5 A-4805-15T4
that were a "cause for concern." The letter included examples of

psychological and development issues with three of the children.

Albert had been diagnosed with symptoms of obsessive-compulsive

disorder, and there was a suggestion that the grandparents might

be enabling or exacerbating his behavior.

A May 2, 2016 FN order required that B.C. and his wife "shall

follow through with the services for the children and attend the

psychological evaluations schedule by the Division." A hearing

was also scheduled for the end of the month to address the issue

of psychological evaluations for B.C. and his wife.

The parties dispute what happened after this court date. B.C.

states that the Division requested mediation and that he agreed

and provided proposed dates. The Division does not address the

issue of mediation, but instead contends that the grandparents

continued to object to psychological evaluations. The Division

also notes that during a June 2016 FN hearing, K.C., the mother,

N.J.S.A. 2A:4A-92 . . . authorizes a Court
Appointed Special Advocate (CASA) program in
each vicinage. See also Rule 5:8C
(authorizing appointment of special advocate
from CASA program to assist Family Part judge
in determining best interests of child);
Administrative Directive #05-13 (July 16,
2013) (noting that CASA volunteers gather
information about children who have been
removed from their homes due to abuse or
neglect and present that information to
court).
6 A-4805-15T4
did not object to removal of the children from her parents' home,

or the court's order that no one would inform the grandparents of

the removal plan.

On June 14, 2016, the children were removed by Division

caseworkers and police while attending a dental appointment for

two of the children. B.C. alleged that the children, particularly

Albert, "were visibly upset and traumatized by the forcible 'Big

Brother' type removal." The Division failed to make any

arrangement for the children to communicate or visit with the

grandparents after the removal. On July 1, 2016, B.C. filed his

FD complaint and order to show cause.

In his FD complaint, B.C. stated that he was the "grandparent,

caretaker and psychological parent for [his daughter's] children

for several years, and particularly as to [Albert]". He stated

that he had "been acting as the caretaker for the children for

over a year in connection with [the FN matter] . . . in which [the

Division] removed the children from their parents['] custody, but

in which no permanency plan has been implemented." He stated that

"[f]or reasons unknown" the Division removed the children "without

making any arrangements for grandparent visitation," and that

prior to this removal, he "ha[d] been in constant communication

with the children their entire lives, and they have never gone

this long without any visitation or communication."

7 A-4805-15T4
 In a letter to the judge, the Deputy Attorney General argued

that the judge should reject the complaint because it was

"[p]rocedurally . . . deficient on a number of levels." She stated

"the [m]aternal [g]randparents have failed to file a [m]otion to

[i]ntervene which would then give them standing to file a [m]otion

seeking any relief." She argued that B.C. and his wife claimed

to be the psychological parents of the children, but that this

status "requires a legal finding . . . . [that] ha[d] not been

made." Finally, she contended that the grandparents continued to

refuse to have psychological evaluations.

The judge denied B.C.'s order to show cause on July 1,

writing: "The complaint in this matter is dismissed. The minors

in this case are the subject of an open FN matter." She also

handwrote under her signature, "Non-Emergent" and "File a motion."

After our oral argument, the Division notified us and B.C. that

the judge had signed an August 30, 2016 FN order without B.C.'s

participation, directing that the children have no contact with

the maternal grandparents.

"We accord deference to the Family Court's fact-finding in

part because of the court's 'special jurisdiction and expertise

in family matters.' However, that deference is perhaps tempered

when the trial court did not hear testimony, or make credibility

determinations based on the demeanor of witnesses." N.J. Div. of

8 A-4805-15T4
Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 350 (App.

Div. 2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

When a "trial court dismisse[s] plaintiff['s] complaint as a

matter of law, our review of the court's decision is de novo."

R.K. v. D.L., 434 N.J. Super. 113, 142 (App. Div. 2014) (citing

Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App.

Div. 2006)). "A trial court's interpretation of the law and the

legal consequences that flow from established facts are not

entitled to any special deference." Zaman v. Felton, 219 N.J.

199, 216 (2014) (quoting Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

B.C. argues that as a full-time caretaker for the

grandchildren on numerous occasions for extended periods of time,

he made "a prima facie case for visitation under the FD docket,

and therefore, the [t]rial [c]ourt erred in dismissing the case

without a hearing and without any discovery." B.C. argues that

the trial court erred in instructing him to file a motion to

intervene in an open FN docket case "when the FD docket complaint

was the proper procedure for asserting grandparent visitation in

the State of New Jersey." On appeal, for the first time, the

Division conceded that the judge could have heard the FD matter

with the FN matter or heard the two matters one after the other.

9 A-4805-15T4
 Two of the many Family Part docket types are the "FD [docket],

which consists of child custody, visitation, child support,

paternity, medical support, and spousal support in non-divorce

matters; [and the] FN, which consists of abuse and neglect

matters," as well as children in need of services. N.J. Div. of

Youth & Family Servs. v. I.S., 214 N.J. 8, 22 n.3, cert. denied,

___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). In

addition to general visitation and support, the "FD docket," which

is also known as the "non-dissolution docket" includes actions for

"non-parent relatives seeking custody, child support and/or

visitation regarding minor children." R.K., supra, 434 N.J. Super.

at 130-31 (quoting Acting Admin. Dir. of the Courts Memorandum,

"Revised Procedures," (September 2, 2011)).

While no specific directive states how a judge should proceed

in the case of an FD complaint filed during the pendency of an

ongoing FN case, the court staff's Non-Dissolution Operations

Manual for New Jersey states that:

[i]f the search for previous case activity
reveals a current abuse & neglect litigation
case involving the child for whom
custody/parenting time is being sought, Family
Division staff should take the complaint and
refer the case to the Judge handling the FN
matter. The FN judge will determine the next
action to be taken regarding the custody
complaint.

10 A-4805-15T4
 [New Jersey Judiciary Family Division: Non-
Dissolution Operations Manual, § 1107
(December 2007 Revised Edition).]

Judges who handle FN and FD dockets may choose to handle the

matters separately or at the same time. See N.J. Div. of Youth &

Family Servs. v. W.F., 434 N.J. Super. 288, 297-99 (App. Div.),

certif. denied, 218 N.J. 275 (2014) (finding that in a case where

the trial judge consolidated FN and FD actions, the father's

agreement to share joint legal custody of three younger children

in an FD action resolved the FN matter); N.J. Div. of Child Prot.

& Permanency v. C.S., 432 N.J. Super. 224, 226 (App. Div. 2013)

(finding that although the grandparents sought custody of one

grandchild under an FD docket, the court was required to perform

a bonding evaluation considering the best interests of the child

in light of an ongoing FN investigation); see also N.J. Div. of

Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div.

2010); (noting in the context of the non-offending parent seeking

to make a child's placement permanent during the course of a Title

96 FN litigation, "the same Family Part judge must preside over

the third-party actions that are inextricably intertwined with the

Division's case").

6 Title 9 actions are brought by the Division "against the wishes
of a parent when a child is abused or neglected." I.S., supra,
214 N.J. at 14; see N.J.S.A. 9:6-8.21.
11 A-4805-15T4
 Thus, the same judge, who is aware of all of the evidence

surrounding the welfare of the children, should ordinarily preside

over both proceedings, whether the FD complaint is heard at the

same time as the FN matter or not. Hearing both matters

simultaneously is not necessarily preferable. See I.S., supra,

214 N.J. at 41-42 (stating "it is preferable for the court to

ensure that there occurs separate and distinct proceedings" for a

Title 307 FN action and an FM8 custody dispute, but recognizing

this "procedure may not always prevail"). Because FD actions

should be heard at the same time or in close proximity to FN

actions, as both parties now agree, the decision to dismiss B.C.'s

FD complaint was not correct.

On remand, the judge must decide the extent to which B.C.

will have access to the FN proceedings. FN proceedings are

confidential in nature. N.J.S.A. 9:6-8.10a. Although caregivers

are notified of proceedings and allowed to make a statement in

court, this does not confer the right to be present during the

entire hearing. N.J.S.A. 9:6-8.19a; N.J.S.A. 30:4C-12.2; R. 5:12-

7"Title 30 enables the provision of services to children in need."
Id. at 14 (citing N.J.S.A. 30:4C-11 and -12).

8 The FM docket consists of complaints for dissolution matters
including: divorce, dissolution of a domestic partnership, civil
union dissolution, and palimony, as well as related relief in
cases where a dissolution complaint has been filed. See id. at
22 n.3.
12 A-4805-15T4
4(i). The judge must therefore decide what level of access is

appropriate to serve the best interests of the children while also

affording B.C. his right to be fully heard on his grandparent

visitation application.

As an alternative to filing the FD complaint, B.C. could have

chosen to file a motion to intervene in the FN matter.

Intervention, however, is not the preferable method of proceeding.

Although B.C. retained counsel, many families involved with the

Division are without means to hire a lawyer, and the FD docket is

constructed to make it easy for a litigant to file a complaint

without the assistance of counsel. See R.K., supra, 434 N.J.

Super. at 131-32; In re Adoption of J.E.V., 226 N.J. 90, 93-94

(2016). Furthermore, motions to intervene in FN matters must be

considered in light of statutory limitations. See N.J. Div. of

Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div.

2011). Although not the preferred method of proceeding, we will

briefly discuss the consequences of filing a motion to intervene.

Intervention as of right is granted when an unnamed party

meets the following requirements:

(1) "claims an interest relating to the
property or transaction which is the subject
of the action," (2) shows she "is so situated
that the disposition of the action may as a
practical matter impair or impede the ability
to protect that interest," (3) demonstrates
her "interest is [not] adequately represented

13 A-4805-15T4
 by existing parties," and (4) files a "timely"
application to intervene.

[Id. at 590 (quoting R. 4:33-1).]

A permissive intervention may be granted in the discretion

of the court to "anyone . . . if the claim or defense and the main

action have a question of law or fact in common." R. 4:33-2.

Permissive intervention "requires a trial court to liberally

determine 'whether intervention will unduly delay or prejudice the

adjudication of the rights of the original parties.'" D.P., supra,

422 N.J. Super. at 590-91 (quoting Am. Civil Liberties Union of

N.J., Inc. v. Cnty. of Hudson, 352 N.J. Super. 44, 70 (App. Div.),

certif. denied, 174 N.J. 190, 803 (2002)).

B.C. also seeks discovery. We stated in D.P. that although

resource parents are entitled by statute to notice and the right

to speak at hearings concerning the child, they have "no legal

claim sanctioning their right to discovery or intervention in a

best interests hearing." Id. at 599, 586-87 (citing N.J.S.A. 9:6-

8.19a, N.J.S.A. 9:3-45.2, and N.J.S.A. 30:4C-12.2).

B.C. does not seek custody of Albert, who remains in an

institutional setting. If, however, B.C. were found to be Albert's

psychological parent, he would be in a different position than the

resource parents in D.P. who sought to intervene in court

proceedings involving the best interests of an unrelated child

placed in their home. Should the court find that intervention was

14 A-4805-15T4
appropriate, B.C. would become a party to the FN case and entitled

to participate fully.

As a final matter, it is valuable to review the standards for

determining grandparent visitation. Generally, N.J.S.A. 9:2-7.1

requires grandparents seeking visitation "to prove by a

preponderance of the evidence that the granting of visitation is

in the best interests of the child." Because this standard

encroaches upon the fundamental right of parents to make decisions

regarding the care, custody and nurturing of their children, the

State may intrude only to avoid harm to the child. Moriarty v.

Bradt, 177 N.J. 84, 114-15, (2003), cert. denied, 540 U.S. 1177,

124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Thus, when the parent

has denied the grandparent visitation, to obtain a hearing the

grandparent must make a prima facie case under the augmented

standard of Moriarty "that visitation is necessary to avoid harm

to the child." Id. at 117; Major v. Maguire, 224 N.J. 1, 6 (2016).

A showing of harm is not required when the party denying

visitation has custodial rights but not "a constitutionally based

presumption of parental autonomy." Tortorice v. Vanartsdalen, 422

N.J. Super. 242, 252 (App. Div. 2011), certif. denied, 209 N.J.

233 (2012). In Tortorice, we affirmed an order granting visitation

to a child's paternal grandparents over the objection of the

maternal grandmother who had sole legal custody of the child and

15 A-4805-15T4
had been designated the psychological parent. Id. at 244, 251-

52. Because the Division is the current legal custodian of Albert

but, like the grandmother in Tortorice, is not vested with the

constitutionally-based presumption of parental autonomy, the lower

burden of "best interests of the child" is appropriate with regard

to B.C.'s request to visit Albert.

The other three children are now living with K.C., with the

Division retaining care and supervision only. Thus, absent the

August 30, 2016 court order to the contrary, K.C. would be able

to make grandparent visitation decisions with regard to those

three children, although preferably in consultation with the

Division. The court should reconsider the August 30 order because

it is not clear from the record that the judge considered K.C.'s

constitutional right to determine grandparent visitation, as the

parent and legal custodian of the three younger children.9 We

remand for that reconsideration as well as consideration of B.C.'s

FD complaint, either heard with the FN matter or heard separately

by the same judge.

Reversed and remanded. We do not retain jurisdiction.

9In a letter to us dated October 24, 2016, K.C.'s counsel expressed
K.C.'s willingness to allow for "some grandparent visitation and
phone contact in the future; with the time and date to be
determined solely by her."
16 A-4805-15T4